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2018 DIGILAW 1038 (KER)

Pankan Soman v. Manoharan C. K.

2018-12-12

P.SOMARAJAN

body2018
JUDGMENT : P. Somarajan, J. 1. Against the decree and judgment of both the Trial Court (Munsiff's Court, Thalassery) in O.S.No.300/2006, dated 09/10/2009, and First Appellate Court (Subordinate Judge's Court, Kannur) in A.S.No. 113/2012 dated 24/09/2012, the defendant came up with this appeal. 2. The suit is one for perpetual injunction against causing obstruction to the user of B schedule way by the plaintiff. A schedule is the registered holding of plaintiff. Plaintiff claims prescriptive right of easement of way over B schedule. The defendant contested the suit disputing and denying the claim. 3. The question essentially came up for consideration in this appeal is what actually amounts to the expression 'Interruption' as envisaged under Section 15 of the Indian Easement Act, 1882. 4. Plaint 'A' schedule property along with other properties subjected to a partition in the year 1990, under Ext.A1 partition karar wherein item No.7 was allotted to the share of plaintiff. Ext.A6 is the previous document of title. 5. According to the defendant, plaint 'B' schedule is lying on a higher level of 6 feet. During 2004 the plaintiff had preferred a complaint alleging obstruction to the usage of way, but the suit was filed only on 6/11/2006, after the lapse of more than 2 years. The suit was not brought into existence within a period of 2 years from the date of obstruction alleged and admitted by the plaintiff. The right claimed by plaintiff is also disputed challenging the user of way as of right as an easement for the required period of 20 years ending within 2 years. The oral evidence tendered by PW2 was rejected by both the Trial court and the First Appellate Court, finding that the same is not reliable. It is based on the oral evidence tendered by PW1, the plaintiff, and the report of the Commissioner, a decree was granted by both the Trial Court as well as the First Appellate Court, granting a permanent prohibitory injunction, finding that the plaintiff had acquired prescriptive right of easement of way over plaint B schedule property. Further, the admission made by the plaintiff regarding the obstruction while in the box and in Ext.A5 proceedings had been overlooked by the Trial Court and the First Appellate Court. Further, the admission made by the plaintiff regarding the obstruction while in the box and in Ext.A5 proceedings had been overlooked by the Trial Court and the First Appellate Court. The plaintiff had admitted as PW1 the obstruction created in the user of way by digging soil across the way so as to construct an obstructing wall by the defendant. Ext.A5 proceedings were initiated based on the above said allegation on a complaint submitted by the plaintiff. 6. It was submitted that the suit was not filed within two years from the date of obstruction and hence no claim can be allowed under Section 15 of the Indian Easement Act,1882 and took support from the decisions in Nachiparayan v. Narayana Goundan and another AIR 1920 Madras 541 and Badariya Madrassa Committee v. Antony Robert 2006 (2) KLT 636 :: 2006 (2) KLJ 181 . It was submitted that when there is interference to the user of the way, the suit must be filed within two years from the date of such obstruction or interference. Relying on the head note prepared by the publisher in Nachiparayan's case (supra), it was submitted that a suit must be brought into existence within two years from the date of interference. In Nachiparayan's case (supra), in the head note prepared by the publisher, instead of the expression 'interruption' mistakenly the word 'interference' was included, may be due to the mistake on the part of the editor who published the journal. Going by the decision, it is seen that no where it is stated or included the word 'interference'. The expression used is 'interruption' and not 'interference'. 'There is lot of difference between these two expressions 'interference' and 'interruption'. In order to resolve the issue, it is necessary to go into the relevant provision-Section 15 of Indian Easement Act 1882 (hereinafter referred to as 'the Act') which is extracted below for reference: “Sec.15. The expression used is 'interruption' and not 'interference'. 'There is lot of difference between these two expressions 'interference' and 'interruption'. In order to resolve the issue, it is necessary to go into the relevant provision-Section 15 of Indian Easement Act 1882 (hereinafter referred to as 'the Act') which is extracted below for reference: “Sec.15. Acquisition by prescription.- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. Explanation I.- Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease. Explanation II.- Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made. Explanation III.- Suspension of enjoyment in pursuance of a contract between the dominant and servant owners is not an interruption within the meaning of this section.” Explanation IV.- In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servant heritage. When the property over which a right is claimed under this section belongs to the [Government], this section shall be read as if, for the words “twenty years” the words [“thirty years”] were substituted. (Emphasis supplied) 7. Section 15 of the Act deals with acquisition of prescriptive right of easement under three different categories. The first part to section 15 deals with acquisition of prescriptive right of easement of light and air. The second part deals with easement for lateral support. It is in the third part the acquisition of prescriptive right of easement of way and other easements are dealt with. The expression 'as of right' conspicuously absent in the first and second parts of section 15 of the Act. In order to satisfy an acquisition of easement by prescription under part 1 to 3 of Section 15, there should be evidence to show peaceful, uninterrupted and open enjoyment, as an easement, for twenty years. But in the case of Part 3 to Section 15, in the matter of easement of way or any other easement other than the one covered by Part 1 and 2 of Section 15, there should be an additional requirement that the enjoyment must be 'as of right'. Part 4 of Section 15 says that the easement acquired under Part 1,2 or 3 to Section 15 (light or air, support or other easement) shall be absolute. Part 5 of Section 15 says that each of such period of 20 years shall be taken to be a period ending within two years next before the institution of the suit. A conjoint reading of Part 1 to 5 to Section 15 would show that the easement claimed by way of prescription should satisfy an uninterrupted enjoyment as an easement openly for twenty years and in the matter of easement of way and other easement other than the one covered by Part 1 and 2, the person who claims the easement must establish user/enjoyment 'as of right' for the required period of twenty years in addition to the requirement as stated above. Part 5 of Section 15 mandates that the 'twenty years period' shall be taken to be a period ending within two years next before the institution of the suit. The word used in the Section is 'without interruption'. Then the question essentially came up for consideration is what actually amounts to the expression 'interruption' as embodied under Section 15 of the Act. 8. Explanation II attached to Section 15 of the Act really explains what actually amounts to an 'interruption', in a negative way that “nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of any obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has noticed thereof.” It stands for an actual cessation of the enjoyment by reason of obstruction made by the person other than the claimant. The expression 'claimant' stands for the person who claims the right, necessarily the plaintiff. So, if there is an actual cessation of enjoyment by reason of any obstruction, then only it would fall under the expression 'interruption' as embodied under part 1 to 3 of Section 15 of the Act. In Badariya Madrassa Committee's case(supra) though the scope and ambit of Section 15 was discussed, the impact of the word 'interruption' as embodied under part 1 to 3 of Section 15 has not been considered in relation to explanation No.II to Section 15 of the Act, but there is only a passing observation in paragraph 9 of the judgment by this court without reference to the explanation attached to Section 15 of the Act. 9. In the instant case, the attempt was to construct a compound wall across the way/an obstructing wall over the way, that has been prevented by the plaintiff by filing complaint before certain authority, evident from Ext.A5. It was also brought under challenge on the reason that the complaint was submitted before an authority who has nothing to do with the dispute and hence cannot be brought under the purview of an action taken worth the name. It was also brought under challenge on the reason that the complaint was submitted before an authority who has nothing to do with the dispute and hence cannot be brought under the purview of an action taken worth the name. What is relevant is whether there is actual cessation of the enjoyment by the act of the defendant due to the obstruction to the way or whether there is any submission of the obstruction or acquiescence for a period of one year after the date of notice of obstruction. The plaintiff while in the box had admitted that his way was prevented and that he could not use the same after its obstruction. Then the question is whether the said admission itself would constitute 'actual cessation of enjoyment' as envisaged under explanation II to Section 15 of the Act. The word 'actual' has got its own importance and value while determining 'cessation of enjoyment' and it mandates an actual cessation of enjoyment and not mere obstruction, though the obstruction may cause difficulty in its enjoyment or reduces the enjoyment considerably. The requirement is actual cessation of enjoyment which stands for absolute prohibition in the enjoyment. A partial prohibition or reduction of extent of enjoyment may not be sufficient. 10. In the instant case what is done by the defendant is by excavating the soil dug a chal for constructing basement of a compound wall. No basement or compound wall was constructed. Before the construction of compound wall or even the basement it was objected by the plaintiff. Hence, it cannot be brought under the purview of 'interruption' as envisaged under Part 1 to 3 of Section 15 of the Act. 11. Yet another contention was also raised by the learned counsel for the appellant with the help of Section 17(a) of the Act, that the sun shade of the building is abutting into the way and the property is having only an extent of in and around 8 cents and the way as per the rough sketch prepared by the Commissioner bifurcates his residential plots into two portions, one is on the southern side and the other is on the northern side. In order to bring the matter within the purview of Section 17(a) of the Act, there should be a total destruction of the subject matter as against its original owner depriving his right of enjoyment over the property. In order to bring the matter within the purview of Section 17(a) of the Act, there should be a total destruction of the subject matter as against its original owner depriving his right of enjoyment over the property. In other words, there should be a total deprivation of enjoyment of property by the servient owner due to total destruction of subject matter by the imposition of easement right. The learned counsel relied on the decision drawn in Sreedharan v. Madanan 2003 (1) KLT 320 in support of his argument. Since, there is no total destruction of the subject or deprivation of right of owner due to imposement of easement, there cannot be any application of Section 17 of the Act. 12. On coming into the question of user of way as of right for the required period of twenty years, the oral evidence tendered by PW2 was rejected both by the Trial Court as well as the First Appellate Court finding that it is not reliable. The interested self serving version of PW1 plaintiff alone is not sufficient to prove the ingredients which constitute Section 15 of the Act. The property was subjected to a partition in the year 1990 and the property lying on the southern side was given to one Gouri and the northern side was given to other shares in the said partition. Earlier, the plaintiff used to pass over the property of Gouri as means of access to his property. But two years back, she had constructed a compound wall around her property. It is also admitted by him that the Tarwad building situated in the property had collapsed due to old age. It is after more than two years he had constructed a new house in the said property. Till that time nobody was residing in the said property except his uncle who had constructed a shed on a corner of the said property and began to reside therein when the Tarwad house collapsed. The above said uncle was not examined as a witness to the plaintiff. On the other hand, the plaintiff was working and residing at some other place during the relevant time. No satisfactory evidence was adduced to show user 'as of right' for the required period of twenty years except the interested self serving oral evidence of PW1. The above said uncle was not examined as a witness to the plaintiff. On the other hand, the plaintiff was working and residing at some other place during the relevant time. No satisfactory evidence was adduced to show user 'as of right' for the required period of twenty years except the interested self serving oral evidence of PW1. On the other hand, there were few steps installed at the place of entrance to the property of plaintiff from the B schedule way. In the said circumstances, the learned counsel for the plaintiff respondent pressed for a remand of the matter to the Trial Court. 13. From the nature of the dispute involved, I am of the view that it is fit and proper to grant an opportunity to the plaintiff. Hence, the decree and judgment of both the Trial Court and the First Appellate Court are hereby set aside. The matter is remanded back to the Trial Court for fresh disposal. The parties may be permitted to adduce additional evidence, if any. The parties shall appear before the Trial Court on 16/1/2019. The Second Appeal is allowed in part accordingly. No order as to cost of second appeal.